NDPS Act | Representative Samples From Seized Substance Must Be Drawn In Presence Of Magistrate: Allahabad HC

The Allahabad High Court observed that representative samples of seized substances must be drawn in presence of Magistrate.

The Court allowed the Appeal challenging the order of conviction under Sections 8 and 15-(C) of the NDPS Act.

The Court noted the police officer’s failure to produce the bulk contraband and draw samples in the Magistrate's presence.

The Bench of Justice Ram Manohar Narayan Mishra observed, “a perusal of the aforesaid provisions reveals that any contraband/narcotic substance seized and forwarded to the police or to the officer so mentioned under Section 53, of the Act, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn”.

Senior Advocate N. I. Jafri appeared for the Appellant.

The Criminal Appeal involved two individuals convicted under Sections 8 and 15-(C) of the NDPS Act in a case originating from Bareilly. They were sentenced to 10 years of rigorous imprisonment and fined Rs. 1,50,000. The case stemmed from a 2004 incident where the police, acting on a tip-off, found a truck loaded with Poppy straw. The accused were arrested, and after a chemical examination confirmed the substance, they were charged under the NDPS Act. Co-accused Pappu died during the trial, leading to the abatement of the case against him. The Appellant filed before the High Court challenging the conviction order.

The Court observed that the appellants were accused of possessing 43 quintals and 30 kg of illegal opium powder, falling under the commercial quantity. While the FSL report supported the case, the entire case property wasn't presented during the trial. Irregularities, such as the absence of a sample from the seized contraband bulk and discrepancies in weighing, raised doubts about the prosecution's evidence.

The Bench emphasized deficiencies in the search and recovery process, expressing concerns about record-keeping, witness names, proper counting of contraband sacks, non-sealing, and stamping, leading to the destruction of bulk contraband. The Court noted the severe consequences of violating NDPS Act provisions, emphasizing the impact on the prosecution's case.

The Bench noted that Section 52A(2), (3), and (4) of the NDPS Act outlined the procedure for seizing, preparing inventory, and forwarding seized material, emphasizing the role of the Magistrate. The certified inventory or photographs, along with any sample list, became primary evidence in NDPS Act-related offences. The provisions mandated officers seizing narcotics to prepare detailed inventories, seek Magistrate certification for accuracy, and draw representative samples in the Magistrate's presence.

The Bench held that there was no evidence proving adherence to the prescribed procedure under subsections (2), (3), and (4) of Section 52A of the NDPS Act during the seizure and sample drawing process. The Court noted the absence of certification by a Magistrate, emphasizing that samples were not drawn in the Magistrate's presence. Due to non-compliance with mandatory provisions, the samples could not be considered valid primary evidence.

Accordingly, the Court allowed the Appeal and set aside the impugned order convicting the appellants.

Cause Title: Satyapal And Anr. v State of U.P. (2024:AHC:18078)

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